Wetzler v. Kelly

• Decision Date: 21 February 1888
• Citation: 83 Ala. 440,3 So. 747
• Parties: WETZLER v. KELLY.
• Court: Alabama Supreme Court

3 So. 747

83 Ala. 440

WETZLER v. KELLY.

Supreme Court of Alabama

February 21, 1888

Appeal from circuit court, Geneva county; J. M. CARMICHAEL, Judge.

This was a claim suit brought in the magistrate's court originally. S. A. Wetzler sued one J. L. Wright in the justice of the peace court on a waive note, and obtained a judgment against him, for which an execution issued, and was duly levied on the cotton which is now the subject of the present claim suit. Upon the levy being made upon the cotton which was in the possession of the defendant in execution the claimants G. W. Kelly & Co., appellees in the present appeal, interposed a claim to the cotton so levied upon. Whaley was shown to be the authorized agent of the claimants S.W. Kelly & Co. Upon the evidence, which is sufficiently fully set out in the opinion of the court, the plaintiff asked the court to charge the jury, in writing, "that if they believed the evidence, they must find for the plaintiff." The court refused to give the said charge and the plaintiff excepted. The claimants asked the court to give the following charge, which was in writing: "That, if they believed the evidence, they must find for the claimants." The court gave the charge, against the objection of the plaintiff, and the plaintiff duly excepted. The giving of this charge at the request of the claimants, and the refusal to give the charge requested by the plaintiff, are here assigned as error.

Marcellus E. Milligan, for appellant.

F. J. Milligan and H. L. Martin, for appellees.

STONE C.J.

It is manifest that the present judgment must be reversed, unless the facts which occurred when Whaley visited Wright in September, or the act "to amend section one of an act entitled 'An act to amend section 3341 of the Code," works a change of the rights of the parties. The statute was approved February 28, 1887. (Sess. Acts, 150.) Code 1886, § 3004; Iron-Works Co. v. Renfro, 71 Ala. 577; Marks v. Robinson, 82 Ala. 69, 2 South. Rep. 292. Wetzler, the appellant, claimed a lien on the cotton in controversy, under an execution issued on a judgment against one Wright, and which was levied on the cotton as Wright's in October, 1886. The cotton when levied on was on the land on which it was grown, the home of Wright, the defendant in execution. The cotton had been grown by Wright. Kelly & Co. interposed a statutory claim to be the property, by affidavit filed that they had a just claim to it. This claim was interposed October 16, 1886, after the levy of Wetzler's execution. Kelly & Co. had a mortgage on the crop to be grown by Wright in 1886, which was dated in January of that year. It is common knowledge that crops of cotton are not planted in this state until after that time. The crop not being planted when the mortgage was made to Kelly & Co., they were without legal title to it, and could not maintain their claim at law, by mere force of the mortgage itself. Iron-Works Co. v. Renfro, 71 Ala. 577; 3 Brick. Dig. 776, §§ 7, 8; Marks v. Robinson, 82 Ala. 69, 2 South. Rep. 292; Jackson v. Bain, 74 Ala. 328.

The testimony of Whaley neither proved, nor tended to prove, a delivery of the cotton to him as the agent of the claimants. He did not take possession, nor was it contemplated that he should do so. The remark of Wright referred alike to the ungathered crop, and to that which had been gathered. He said: "You have a mortgage. All that is yours; you can have it," referring to the crop. Whaley instructed Wright to haul the cotton to the gin, have it ginned, and bring it to Newton; but the cotton never came into the actual possession of Whaley, and was allowed to remain in possession of Wright, defendant in execution and mortgagor. While so in his possession, the levy of Wetzler's execution was made, out of which the present contest grew. The remark of Wright had reference alone to the interest the mortgage secured to Kelly & Co., and neither changed the status of the property, nor was it intended to do so. Nor can the statute,...